This section may be useful if you are looking for a mediator or information about mediation to help resolve a dispute.
mediation v litigation? - ASWM mediators - civil & commercial - family mediation - public service mediation - workplace mediation
Once negotiation fails, most parties involved in disputes use litigation to arrive at a definitive outcome. Traditional litigation has a number of drawbacks:
- It is often costly - financially, organisationally and emotionally
- It is very often time consuming, not only for the immediate parties involved, but also for many other individuals - witnesses, colleagues, family members, experts and advisers
- The outcome will usually be based on a strict interpretation of the law
- It is adversarial and confrontational
Litigation frequently does not give an opportunity to the parties to express themselves, and the wider interests and needs of the parties are seldom addressed by this conventional approach. In particular, factors outside the scope of the matter under litigation are not able to be considered by the court, even though they may be fundamentally important to the parties.
- Mediation is voluntary, but refusal to mediate can give rise to cost sanctions.
- Courts actively encourage parties to consider mediation.
- Mediation is confidential and 'without prejudice' (nothing said in the mediation is admissible as evidence in legal proceedings).
Any settlement reached is binding once put into writing and signed by the parties.
Throughout the mediation process, decision-making rests with the parties. During mediation, parties are helped to identify and analyse issues, reduce obstacles to communication, recognise information needs. Mediators, who are neutral to all parties, explore alternatives and focus on the needs and interests of those most affected by the dispute. Unlike court proceedings, mediation involves the direct participation of the parties, who often work alongside instructed legal representatives.
Mediation has a number of advantages over litigation processes:
- Successful - a high percentage of civil and commercial mediations achieve settlement.
- Quick - Quick - most mediations are arranged within a few weeks (or even more quickly) and the formal mediation session usually lasts for only one or two days, although family mediations can last longer.
- Cost effective - compared with litigation, mediation is a less expensive route to resolving disputes.
- Gives parties control over the process and the outcome.
- Informal and flexible - the process is free of the restrictive Court procedures and can be adapted to meet the needs of the parties.
- Can run alongside litigation or you may prefer to put the litigation process 'on hold' while you mediate.
- Can maintain relationships far more effectively than litigation.
- A wide variety of settlement options can be achieved in mediation over and above monetary settlements.
Impartiality, integrity and professionalism are key qualities of any good mediator. ASWM offers panels of fully accredited mediators recruited from specialist professional backgrounds. We are able to make sure you are offered the right mediator in terms of experience, location and cost for your dispute. Fees will depend on the type and complexity of the dispute, the level of expertise of the mediator and the amount of time the mediation is expected to take.
Mediation is a process which require all the parties to a dispute to agree to involve a third party independent neutral person (the mediator) to help them to find a binding solution which is acceptable to the parties.
Mediation takes place in a confidential and off the record environment, enabling the parties to discuss directly, or through the mediator, possible solutions.
To commence a mediation you need first to agree with the other parties to your dispute to follow this process. If you then contact us, or want to discuss the process, we can advise you on the steps to take and help you to find a suitable person to act as the mediator.
If you want us to nominate a mediator, you are welcome to contact us.
Mediation offers parties involved in civil and commercial disputes an alternative to litigation, where qualified and professional mediators enable parties to arrive at their own settlement through informed and fair negotiations. Mediators are neutral and independent and through a balanced process ensure that parties have the space and freedom to express themselves and make their views heard.
Mediation is not a substitute for legal advice; but parties can be supported through the mediation process by their legal representatives.
Civil and Commercial mediators deal with disputes arising from all aspects of civil and commercial law, although Public Sector matters are dealt with by specialist Public Sector Faculty mediators - see below.
The Civil and Commercial Faculty has been accredited as a mediation provider by the Civil Mediation Council. This means that all our Faculty Panel members have been accredited by accredited training organisations, have complied with the Faculty's continuous professional training requirements, have adequate experience and subscribe to the Association's ethical codes and the European Code of Conduct for Mediators 2004.
Family mediation is a process in which one or two experienced and qualified mediators help a couple to reach joint decisions on one or more matters relating to their children, finance and property.
The focus of mediation is the future, i.e. the concrete issues that need to be resolved for the couple to be able to move forward.
The Association of South West Mediators has a panel of highly experienced family mediators, each of whom is accredited by recognized training organisations, have complied with the Faculty's continuous professional training requirements, have adequate experience and subscribe to the Association's ethical codes and the European Code of Conduct for Mediators 2004. Most are willing to perform both publicly and privately financed mediations.
In its simplest form mediation assists in resolving disputes in a structured informal way rather than going through formal processes, encouraging a win/win outcome rather than a win/lose conclusion to a formal procedure.
It can be used to resolve difficulties within the work place for example between:
- Members of staff
- Staff and management
- Staff and customers/members of the public
- In schools between Teachers and Parents, Head Teachers, Governors, other professionals, between parents and children
The disputed areas may involve:
- Gay, Lesbian, Bi-sexual, Transgender and Gender issues
- Other areas of Discriminatory Practice
- Inadequate or inappropriate support for Special Educational Needs provision
- Stress at work through relationships or actions of others within the workplace
All mediators within this faculty will have experience of mediation cases in relation to a wide range of disputes involving services to the public, including Equal Opportunities.
When dealing with vulnerable adults or children, two mediators will be required to assist in the process. This is a statutory requirement.
Workplace mediation is a voluntary process in which an impartial, experienced mediator works with those in conflict to explore ways in which that conflict may be resolved and working relationships restored.
Conflict and the use of mediation
Workplace conflict can take many forms, from trivial irritation with colleagues to a long term crisis in relationships. When workplace conflict starts to get out of hand it becomes increasingly difficult for those involved to speak together to find a renewed relationship. Other colleagues may be impacted, grievance or dismissal procedures may be triggered, hours could be lost to long term sickness or valued staff may choose to resign.
Mediation provides a way for those in conflict to sit down and talk together to be able to create their own solutions to their conflict. Exploring conflict creates scope for learning and change, whereas suppressing conflict prolongs disharmony and disrupts work.
Why use mediation?
Resolving conflict by mediation can:
- “Clear the air”
- Improve working relationships
- Reduce the desire to take days off work
- Reduce time lost to sickness
- Help experienced and valued staff find ways of continuing to work together
- Improve morale and productivity
- Provide an alternative to employment tribunal claims
- Bring about lasting change
The mediation process
We first meet with the parties individually and listen to the issues and concerns they want to bring to mediation. We explain and answer any questions about the mediation process.
If those in conflict choose to proceed, we will arrange for them to meet together. We work with people to create a safe and confidential setting. We then help them communicate as they explore their differences and seek to develop ways to constructively and realistically manage their conflict. Through this process the parties may transform their working relationship.
Finally, we will support the parties in coming to agreements on the way forward.
At all times mediators are impartial, non-judgmental and do not impose solutions.
Arrangements for a mediation
It is usual to provide the mediation referrer and the parties with basic information about the mediation process. Similarly copies of the ‘Agreement to Mediate’ that will be signed by the parties will be shared with the referrer.